Field v. Proctor

Fish, C. J.

This is an action to recover a small strip of 4.65 acres of land lying along a disputed dividing line between the premises of the parties. The verdict was for the plaintiff, and the assignment of error is upon a judgment overruling the defendant's motion for new trial. The three special grounds of. the motion are based on alleged newly discovered evidence, in substance as follows: (1), The testimony of a witness (who testified at length and in much detail on the trial, in behalf of the defendant), to the effect that some twelve or fourteen years previously the plaintiff pointed out to him “ a corner tree, and also the location of what he then claimed to be the line between his land and movant’s,” which is the line contended for by movant; and the witness remembered that none of the land cleared by a designated witness for the plaintiff was on the defendant’s side of the line. (2) The testimony of another witness (who testified at length on the trial for the defendant), and two new witnesses, that there are now standing three pine trees on or near the line claimed by movant as the true line between his land and that of the defendant, on each of which trees there are three ancient' side-chops, the chops being nearly covered over with the growth of the bark on the trees, “ but unmistakable signs of the line when discovered.” (3) The testimony of a witness (who testified for the plaintiff on the trial) to the effect that he was mistaken in his testimony given on the trial as to the dates when he moved to and away from the land in question; this, in view of the respective contentions of the parties, being material. Held;

No. 1961. February 18, 1921.

Complaint for land. Before Judge Lovett. Bulloch superior court. Jauuary 24, 1920.

Brannen, Booth & Cowart, for plaintiff in error. Fred T. Lanier, contra.

(as) The court did not err in overruling the motion on these special grounds. It would seem that the alleged newly discovered evidence could have been discovered by proper diligence before the trial; and moreover, it is not probable that it would cause a different result on a second trial. See, as to the last special ground, Clark v. State, 117 Ga. 254 (43 S. E. 853); Heath v. Clark, 141 Ga. 65 (80 S. E. 288).

(6) There was ample evidence to authorize the verdict, and the refusal of a new trial was not error.

Judgment affirmed.

All the Justices concur.